Massachusetts house of representatives. And he was also even while he was on the Supreme Court a professor at the harvard law school. Interestingly enough, he was also noted as one of the most successful authors of the first half of the 19th century. Matter of fact, when he was 65 years old, that particular year his book royalties gave him twice as much money as his salary as a justice of the Supreme Court. As many of you know, he became when he was appointed at that time, the youngest justice to serve on the Supreme Court. And one of the youngest ever to serve. He was appointed by president madison in 1811. And was actually took office the following year in february of 1812. As most of you you know, im sure, he made a significant mark on american law in his 33 years on the bench. But his greatest contribution to jurisprudence is his commentaries on the constitution in which he set forth a philosophy of judicial restraint. He was quite enamored by the philosophical approach to the law of chief justice marshall. As he said marshall was the leading subject in the commentaries. We celebrate his legacy to the United States and the field of law. The previous lectures have been delivered by judge clarence thomas, justice clairence thoma. Professor John Harrison ray randolph, judge oscanlan. As our guests this evening that is joining this distinguished group of judge and professors, is the honorable brett cavanaugh. He was appointed by george w. Bush and took office on the 30th of may, 2006. Before his appointment, he served for more than five years in the white house in various capacities. He began as an associate counsel to the president. And was assistant to the president. During his career, the judge has been a partner in private practice with the firm of kirkland and ellis here in washington, d. C. He has been an attorney in the office of the solicitor general of the United States and clerked for a number of distinguished justices. Justice kennedy and judge water stapleton. Hes graduate of yale college and also of the yale law school. Please join me in welcoming our joseph story, distinguished l lecturer, the honorable brett cavanaugh. [ applause ] thank you for the kind introduction. Im honored to be here to deliver the joseph story lecture. His story had a profound effect on the United States. And im proud to deliver a lecture in his name. When i look at the distinguished list of past speakers, Justice Kennedy, justice thomas, ray randolph, my former colleague judge Janice Rogers brown who i miss greatly. I will admit ive not been a regular attendee because every year it seems to fall on the same night as basketball tryouts for the cyo Girls Basketball team i coach in d. C. This your, i finally pulled rank as seniority and i moved the teams tryouts a night. Tonight im with you. Last night, i was trying with limited success to get 47 fifth and sixth grade girls to listen to me. I will try not to use my coach voice with you tonight. The tryouts were good. Were going to have a good team. Youre probably not here to hear about that. Coaching my daughters in the fifth and sixth team Girls Basketball team has been an important part of my life for the last six years. It sometimes means during the winter im scrambling out of the courthouse to get to practice. Sometimes i dont always transition that well. And last year, i was frustrated at practice and i finally blew the whistle. I guess yelled is probably a fair statement. Yelled at the girls. You cant dribble through a zone press youve got to pass the ball and i guess my voice must have been like it was there, pretty loud. There was silence in the gym. There is really never silence in the gym with a bunch of fifth and six graders. One of the girls on the team, tatum, who has a future, i believe as a standup comic, broke the silence and said oh, hes using his judge voice on us now. And they all started laughing at me. I love all those girls and with them in mind, tonight i also will try not to use my judge voice on you. Im especially honored to be here with general niece. To begin with on a personal level, im grateful to him for the kind support of my confirmation, the wonderful letter he wrote for me back in 2006. I thank many others in this room who also helped me through the process. You dont forget your confirmation process. And my process was interesting. I think thats a good work for it. Because i was serving in the white house when i was nominated for judgeship. I worked there for five and a half years before i became a judge. Standing here today, some 12 years later, let me say first that i think a white house experience made me a far better judge than i otherwise would have been. In terms of understanding of government of the legislative process, of the regulatory process. Of National Security decision making. The pressure. The ups and downs and the ins and outs of how our government operates at the very highest level. I believe my white house experience made me a more knowledgeable judge certainly and also a more independent judge. Because working at the white house, at least in my view, helps give you the backbone and fortitude to say no to the government when the stakes are high. I think john roberts, who had substantial white house experience, would say his experiences have made him a better jurist. I think its fair to say to say that certain senators were not sold on that. They were not sold that the white house was the best launching pad for a position on the d. C. Circuit. Indeed, one senator at my hearing noted that i had worked at the white house for more than five years and said in his opening remarks this isnt just salt in the wound, this is the whole shaker. This is true after the hearing about that senator my mom said to me, i think he really respects you. As only a mom can. So people often ask me whether the job of an appellate judge is lonely or isolating. And the short answer is that it can be if you let it. The day the president signed moo icommission to be a judge which was tuesday may 30, 2006, at 7 00 a. M. Not that you remember those thing. I went up to the Supreme Court and Justice Kennedy swore me in in a private ceremony in his champi chambers. Justice kennedy then told me i would get to my new chambers that afternoon and there would be a phone and commuter and a de desk and no one would call me again. He encouraged me to speak and teach and interact with the bar and students. Something he had regularly done on the ninth circuit and something he has continued to do during his many years on the Supreme Court. I taught full term separate of powers every year for the last decade. I try to get out to many bar events and visit law schools. Tonight im following his advice with the honor of delivering the story lecture. When Justice Kennedy says something, i listen. Me and 320 million other americans. I want to thank you not just for hosting me here and helping me in the confirmation process back in 2016, but more importantly for the central role he played in leading the revival of originalism in american law. I cannot emphasize enough how significant he has been in changing the direction of american law. I think often of chief Justice Renquist and scalia as jurists. We also must celebrate general niece, he of course was responsible for many landmark policy and important decisions in his role at the white house and his attorney general. And as attorney general, more than perhaps any attorney general in modern history, he took an interest in constitutional theory and doctrine. He delivered a famous speech on july 19th, 19th, 1985, to the an bar association. Its great speech. If i can give you an initial homework assignment, its this. Go read his speech. Let me give you highlights for now. His fir he said i know the sessions here will be very productive. When i read that last week, very productive meetings of the aba house of delegates. I wondered was that a laugh line . But he then proceeded to talk about how utterly unpredictable the Supreme Court of the 1980s could be when rendering its judgments. He referred to a case that had come out a few years earlier and what somebody had said. The bad news is that the snail darter won the good news is he didnt win under the 14th amendment. General niece said the court during its most recent term in 1984 continued to roam at large in a constitutional forest. He discussed three areas of the courts jurisprudence. Federalism, criminal procedure and religion. Discussing federalism, he said that federalism helps us, quote, better secure our ultimate goal of political liberty through decentralized government. Well said. When discussing religion, he said, quotes, to have argued the First Amendment demands a strict neutrality between religion and ir irruligion will have struck the founders as bizarre. Well said. In summarizing his views, the general stated far too many of the courts opinions were on the whole more policy choices than articulations of constitutional principles. He noted in a critical passage that until there emerges a coherent stance, the work of the court will continue in this ad hoc fashion. He argued for a jurisprudence of originalism. To judge policies in light of prir principles rather than to remold principles in light of policies. His speech struck a nerve in the american legal staestablishmentd represented a call to action for all those who are concerned about the rule of law and the role of courts. He urged more attention as he put it to the words of the constitution for the framers of the constitution chose their words carefully he said. It is sometimes said that the constitution is a document of majestic generalities. As i see it, and as the general described it, the constitution is largely a document of majestic specificity. And those specific words have meaning, which absent constitutional amendment continue to bind us as judge, legislators and executive officials. So if i could suggest another homework assignment its this, in the next few days, block out 30 minutes of time and read the text of the constitution word for word. I guarantee you youll come away with a renewed appreciation for our constitution and for its majestic specificity. The text of the constitution binds all three branches. Again, thinking back to my confirmation process, i met with senator robert byrd at one point during the process when i was trying to get confirmed. This was an interesting meeting. He said i would never forget it. He said you will never forget this meeting. It turned out he was right. He asked about my family. At that point back in 2006 i said i have a oneyearold daughter. He said i have two daughters. Theyre 68 and 64. Then he pulled out his constitution. It was right there. I was prepared i had this same constitution right there, too. Its tattered now, but i still have it. He pulled his out and read me article is language about the power of the purse. He did that because the text of the constitution matters. He did that because if you remember senator byrd, he really cared about the power of the purse. So general nieces 1985 speech helped advance a straightforward philosophy of constitutional and statutory interpretation. Its not complicated but its profound and worth repeating often. The judges job is to interpret the law, not to make policy. Read the words of the statute as written. Read the text of the constitution as written, mindful of history and tradition. Dont make up new Constitutional Rights that are not in the constitution. Dont shy away from changing the constitution is for the amendment process. Changing policy within constitutional bounds is for the legislators. Remember that the structure of the constitution, the separation of powers and federalism are not mere matters of et kit or architecture but are essential in protecting individual liberty. Structure protects liberty and remember that courts, courts have a Critical Role when a party has standing enforcing those separation of powers in federalism limits. Simple but profound. Along with chief Justice Rehnquist and Justice Scalia and judge bourque and judge silverman and many others in the 1970s and 80s, general meese laid the ground work for a rule of law as a law of rules. For the notion of judges as umpires and not as policy makers. For the notion as he put it in 1985 that judges should not be roaming at large in the constitutional forest. A few months ago, i told john malcolm, i would talk about the separation of powers. And i suppose that was not really a limited selection of a topic for me. If you were in my judicial chambers, at really any point, you would hear me often saying to my clerks, every case is a separation of powers case. And i believe that. Who decides is the basic separation of powers question at the core of so many legal disputes . The bread and butter of our docket on the d. C. Circuit is interpretation of statutes. Usually deciding when an agency exceeded its statutory limits. That question of policing the balance between the legislative and executive branches, our Administrative Law docket, constitutes one of the most critical separation of powers issues in the law. And the most important factor is the precise wording of the statutory text. If you sat in our courtroom for a week or two and listened to case after case after case. And i do not advise that for anyone who wants to remain sane, if you did that, you would hear judge after judge from across the ideological spectrum ask counsel about the precise wording of the statute or regulation at issue. Statutory interpretation has improved statutory text matters much more than it once did. If the text is sufficiently clear, the text usually controls. The text of the law is the law. As Justice Kagan recently stated, were all textualists now. Justice scalia helped bring about a massive and enduring change on the Supreme Court and in american law. But more work remains. In my view, certain aspects of statutory intercepti statutory interpretation are still troubling. And as i will explain, one primary problem stands out. To begin, one over arching goal is to make judgments in all cases, not just statutory interpretation. The american rule of law, as i see it, depends on neutral, impartial judges, who say what the law is, not what the law should be. Judges are umpires or at least should always strive to be umpires. In a perfect world, the outcomes of cases would not often be vary based solely on the backgrounds, political affiliations or policy views of judges. This is the rule of law is the rules. The judge is the umpire, not free to roam in the constitutional or statutory forest as he or she sees fit. In my view too, this is a constitutional mandate in a separation of powers system. Article one assigns the legislative branch along with the president the power to make laws. Article three grants the courts the judicial power to interpret those laws in individual cases and controversies. When courts apply doctrines that allow them to rewrite the laws in effect, they are encroaching on the legislatures article one power. But this vision of judges umpire raises a natural question. How can we move toward that ideal in our judicial system . When judges come from many different backgrounds and may have a variety of very strong ideological, political or policy predispositions. To be sure, on occasion the relevant constitutional or statutory provision may actually require the judge to consider policy and perform a common lawlike function. Federal rule of evidence 501 is a good example. But many statutory cases involve interpretation of a statutes text. Under the structure of the constitution, congress and the president , not the courts, possess the authority and responsibility to legislate. As a result, clear statutes clear statutes, are to be followed. Statutory texts are not just common law principles or aspirations. This tenet adhered to the text is neutral as a matter of politics and policy. The text may be pro business or pro labor. Pro development or pro environment. Pro bank or pro consumer. Regardless, judges should follow the text where it leads. At the same time, when the text to the statute is ambiguous rather than clear, judges may resort to a variety of cannons of construction. These ambiguitydependent cannons include, one, in cases of textual ambiguity, avoid interpretations raising constitutional questions. Two, if there is textual ambiguity, rely on the legislative history. Three, in cases of textual ambiguity, defer to an executive agencys reasonable interpretation of a statute, also known as chevron deference. Here is the problem. And its a major problem. All of these cannons depend on a problematic threshold question. Courts may resort to the cannons only if the statute is not clear, but rather is ambiguous. But how do courts know when a statute is clear or ambiguous . In other words, how much clarity is sufficient to call a statute clear and to end the case there without triggering the ambiguitydependent cannons . Unfortunately, there is often no good or predictable way for judges to determine whether statutory text contains enough ambiguity to cross the line where courts may resort to the constitutional voidance doctrine, legislative history, chevron deference. In my experience, and this is my personal experience, judges often go back and forth arguing over this exact point. One judge will say the statute is clear. Thats the end of it. The other judge will respond, i think the text is ambiguous, manying one or another should avoid the case. Neither judge can convince the other. And thats because there is no right answer. It turns out that there are at least two separate problems facing these disagreeing judges. First, the judges must decide, how much clarity is enough to call a statute clear. If the statute is, say, 60 40 in one direction, is that enough to call it clear . How about 80 20 . Who knows . And second, lets imagine that we could agree on an 80 20 clarity threshold. In other words, suppose the judges may call a text clear, only if its 80 20 or more in one direction. And even if we say that 80 20 is the necessary level of clarity, how do we then apply that formula to particular statutory texts . Again, who knows . Determining the level of ambiguity in a given piece of statutory language is often not possible in any rational way. One judges clarity